ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS SAMR-RB 31 July 2019 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20190001926 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 4 June 2019, in which the Board members recommended denial of the applicant’s request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by amending his DD Form 214 for the period of service ending 26 November 1979 to reflect “General, under honorable conditions” in item 24 (Character of Service). 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 30 November 2019. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20190001926 APPLICANT REQUESTS: The applicant requests an upgrade of his characterization of service from under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC82-07414 on 13 April 1983. 3. The applicant states, in effect, he was an administrative specialist and he believes that he was taken advantage of because of the color of his skin. He also states that it has been more than 30 years since he was discharged and he has not gotten into any trouble since that time. He has been a good member of society. 4. On 28 December 1978, the applicant enlisted in the Regular Army for 3 years. He held military occupational specialty 71L (Administrative Specialist). 5. On 22 June 1979, while assigned to Fort Polk, LA, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty at the time prescribed on 19 and 20 June 1979. His punishment consisted of reduction to pay grade E-1, a forfeiture of pay, restriction, and extra duty [all suspended for 180 days]. On 24 October 1979, this punishment was vacated. 6. Court-martial charges were preferred against the applicant on or about 9 November 1979 for: * failure to go to his appointed place of duty at the time prescribed on 7 November 1979 * behaving disrespectful toward a commissioned officer, by failing to answer the commissioned officer, while he was talking to him on 8 November 1979 * indulging in intoxicating liquor and being incapacitated for the proper performance of his duties on 8 November 1979 7. On 9 November 1979, the applicant consulted with legal counsel and he was advised of the bases for the contemplated trial by court-martial for offenses punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). He acknowledged that under no circumstances did he want further rehabilitation, nor did he want to perform further military service. There is no evidence that shows he submitted statements in his own behalf. 8. On 14 November 1979, his commander recommended trial by a special court-martial empowered to adjudge a bad conduct discharge. 9. On 21 November 1979, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200, with a discharge under other than honorable conditions. On 26 November 1979, he was discharged accordingly. His DD Form 214 shows he completed 10 months, and 29 days of total active service with no lost time. 10. He applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations on two occasions and his requests were denied on 16 July 1981 and on 5 December 1986. 11. The applicant contends that he believes he was taken advantage of because of the color of his skin. He also states has been a good member of society since being discharged. The available evidence does not show that he was treated unfairly because of his ethnicity or the color of his skin. 12. The available evidence shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10, AR 635-200, are voluntary requests for discharge in lieu of trial by court- martial. He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. 13. He completed approximately 11 months of a 3 year service obligation. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board discussed his service record, the frequency and nature of his misconduct, his statement regarding his treatment in-service and his post-service behavior and consideration of clemency. The Board determined that there were insufficient mitigating factors for his misconduct and that the character of service at discharge was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board determined that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): Not Applicable ? REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service in lieu of trial by court- martial. The request could be submitted at any time after the charges had been preferred and must have included the individual’s admission of guilt. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20190001926 2 1